Lucky Horse
Fashion, Inc., 1997-INA-182 (BALCA Aug. 22, 2000) (en banc)
U.S. Department of
Labor
Board of Alien Labor Certification Appeals 800 K Street, NW, Suite 400-
N Washington, DC 20001-8002
Date Issued: August 22, 2000
Case No.: 1997-INA-0182
In the Matter of:
LUCKY HORSE FASHION, INC.,
Employer,
on behalf of
DI WU HONG,
Alien.
Certifying Officer: Delores Dehaan, Region II
Appearances:
John L. Moncrief , Esq.
New York, NY
For Employer and Alien
Vincent C. Costantino, Esq.
Washington, D.C.
For the Certifying Officer
Kenneth H. Stern, Esq.
Stephanie Goldsborough, Esq.
Denver, CO
For American Immigration Lawyers
Association,
American Immigration Law Foundation
Before: Chief Judge Vittone, Associate Chief Judge Burke,
Administrative Law Judges Holmes, Huddleston, Jarvis, and Wood
Richard E. Huddleston
Administrative Law Judge
DECISION AND ORDER
The above action arises upon the Employer's request for review pursuant to
20 C.F.R. § 656.26 (1991) of the denial by a U. S. Department of Labor Certifying Officer
("CO") of alien labor certification for the position of "Sewing Machine
Repairer." The CO denied certification on the ground that the job opportunity contains a
foreign language requirement which has not been supported by evidence of business necessity as
required by § 656.21(b)(2). The decision of the CO was affirmed per curiam on
March 19, 1998, on the basis of the well established principles set out in Information
Industries, Inc., 1988-INA-82 (Feb. 8, 1989)(en banc).
[Page 2]
Employer filed a request for review by the full Board of Alien Labor
Certification Appeals on April 3, 1998. Employer argues that the per curiam decision
seems to concede that a 100% Chinese speaking work force justifies a Chinese speaking repairer
but not a three dialect speaking repairer. Thus, Employer argues that the application should have
been remanded to permit amendment and re-advertisement of the job for a repairer who speaks
"Cantonese or perhaps Cantonese and Chao Chow." Employer also argues that the
panel decision finds that another worker should be relied upon to translate, and "[t]he fact
that a business may have 'made do' using another worker to translate is not determinative of
'business necessity' if it is an inefficient way to do business."
On September 29, 1998, we granted the request for en banc review
concerning the proper way in which to analyze a foreign language requirement(s) where a
majority of Employer's workforce does not speak English, or speaks English plus a common
foreign language. We also noticed that this review may require the Board to examine
Information Industries, Inc., 1988-INA-82 (Feb. 8, 1989)(en banc)(established
business necessity test), and Coker's Pedigreed Seed Co., 1988-INA-48 (April 19,
1989)(en banc) (adapted business necessity test to foreign language requirements), and
their progeny. We ordered submission of briefs within 90 days, and invited the American
Immigration Lawyers Association (AILA) and the American Immigration Law Foundation
(AILF) to participate as amici curiae. Briefs were filed by the CO, Amici AILA
and AILF.
Statement of the Case
Employer, Lucky Horse Fashion, Inc. seeks labor certification for the new
position of "Sewing Machine Repairer." Employer required 2 years of experience in
the job offered and the ability to speak three Chinese dialects, Chao Chow, Cantonese and
Mandarin.
In a Notice of Findings dated September 2, 1996, the CO found, inter
alia, that Employer's requirement of fluency in the Chinese dialects of Cantonese, Chao
Chow and Mandarin languages was unduly restrictive pursuant to 20 C.F.R.
§ 656.21(b)(2)(i). Employer was directed to establish business necessity. (AF 32-37)
In its rebuttal submitted on July 9, 1996 (AF 38-64), Employer's president
stated that all of its workers speak a dialect of Chinese, and that nearly all its workers speak very
limited English. Employer asserted that the sewing machine repairer would speak one of these
three dialects eighty-five percent (85%) of the time. Only ten percent (10%) of its workers can
communicate sufficiently in English to establish a problem with a machine. Employer explained
that sewing machine repair problems cannot be efficiently explained with sign language--that
problems include "angle and depth of needle strokes, feed timing, needle and hook timing,
thread timing and reverse feeding." (AF 59A) Efficiency would be lost, explained
Employer, if a translator was required. Early in the application process, Employer's president had
stated that he had to be present to translate for outside repairers--an expensive and time
consuming process in a highly competitive business. (AF 1) Moreover, Employer explained
that its past experience with outside repairers had been unsatisfactory "partly because of the
language problems." (AF 59)
[Page 3]
Employer's rebuttal also included the statement of the President of Ching
Heung Fashions Corp. indicating that it employs a full time sewing machine operator; that it
cannot afford to have a machine down; that outside repairers cannot be relied on to come when
called; and that it is important that the repairer speak Chinese "when all of your workers
speak Chinese." (AF 58) Similar statements were supplied by the Presidents of Yue Yee
Inc., Heung Fook Fashions, and LP Fashions, Inc. (AF 55-57) Finally, Employer supplied an
employee list showing the Chinese dialect spoken by each of its employees. (AF 51-54)
The CO issued a Final Determination on July 17, 1996 (AF 65-68) denying
certification based on her conclusion that business necessity for the three dialects had not been
established. The CO denied certification on the ground that a U.S. applicant was unlawfully
rejected. The CO concluded that the applicant was apparently well qualified except for the
language requirement. The CO pointed to the fact that Employer had been using outside
repairers effectively for a number of years. Employer requested Board review on August 2,
1996. (AF 95-105) Employer's president stated that although he has been able to do business
without a Chinese speaking repairer, it was a temporary "make do" situation. (AF
105) Employer's request for review also included a legal brief. (AF 95-102)
Discussion
This matter is before us to review en banc the proper way in which
to analyze a foreign language requirement(s) where a majority of Employer's workforce does not
speak English, or speaks English plus a common foreign language. We also noticed that this
review may require us to examine Information Industries, Inc., 1988-INA-82 (Feb. 8,
1989)(en banc)(established business necessity test), and Coker's Pedigreed Seed
Co., 1988-INA-48 (April 19, 1989)(en banc) (adapted business necessity test to
foreign language requirements), and their progeny.
The regulation provides at 20 C.F.R. § 656.21(b)(2)(i) that:
(2) The employer shall document that the job opportunity has been and is being
described without unduly restrictive job requirements:
(i) The job opportunity's requirements, unless adequately documented as
arising from business necessity:
(A) Shall be those normally required for the job in the United States;
(B) Shall be those defined for the job in the Dictionary of
Occupational Titles (D.O.T.) including those for subclasses of jobs;
(C) Shall not include requirements for a language, other than English.
1Although § 656.21(b)(2)(i) could have
been made clearer by the drafters in regard to whether the requirements of are conjunctive or disjunctive, when read
in context the only logical interpretation is that they are conjunctive. Otherwise, the issue of business necessity
would never be reached in any job for which a foreign language is not required. Therefore, in order for the business
necessity test to be inapplicable, an employer must establish all three elements of Section 656.21(b)(2)(i), that is,
that the job requirements are those normally required in the United States, are those in the DOT, and do not
require fluency in a foreign language. Information Industries, Inc., infra at footnote 6.
2DOT code 639.281-018:
SEWING-MACHINE REPAIRER (any industry) alternate titles: sewing-machine adjuster: Repairs and adjusts
sewing machines in homes and sewing departments of industrial establishments, using hand tools: Turns screws and
nuts to adjust machine parts. Regulates length of stroke of needle and horizontal movement of feeding mechanism
under needle. Dismantles machines and replaces or repairs broken or worn parts, using hand tools. Inspects
machines, shafts, and belts. Repairs broken transmission belts. Installs attachments on machines. Initiates orders for
new machines or parts. May operate machine tools, such as lathes and drill presses, to make new parts. May be
designated according to location in which employed as Fitting-Room Maintenance Mechanic (boot & shoe).
3 To the contrary, if only a small portion
of the employer's business involves persons speaking a foreign language, this may be insufficient to establish
business necessity. Cf., Weidner's Corporation, 1988-INA-97 (November 3, 1988) (en banc);
Best Roofing Company, Inc., 1988-INA-125 (December 20, 1988) (en banc).
4 It would not be inappropriate for the
CO to require an Employer to provide evidence of the business related reasons that none of his other employees
speak English. For example, an employer who does not pay prevailing wages or who hires illegal aliens, should not
be permitted to use the fact that his workforce speaks no English as the basis to obtain labor certifications.
However, the dissent appears to place the burden of proof upon the CO to establish that an Employer's non-English
speaking workforce is grounded in violations of immigration or labor laws. To the contrary, the burden of proof
must always remain with an Employer to overcome the specific exclusion of the use of a foreign language in
§ 656.21(b)(2)(i)(C). This finding must not be construed as holding that business necessity can
never be established based upon evidence of a non-English speaking workforce. However, an Employer
who relies solely upon evidence that his existing workforce does not speak English, without evidence that
such is the result of lawful market forces, does not carry his burden of proof that the job bears a reasonable
relationship to the use of a foreign language.
5No regulatory history exists that would
explain the Department of Labor's reason for expressly setting out foreign language requirements as presumptively
unduly restrictive, and therefore requiring a showing of business necessity. It is not clear to me that prevention of
self-perpetuating foreign work forces is the target of the regulation. In Posadas de Puerto Rico Associates, Inc.
v. Secretary of Labor, 698 F.Supp. 396 (D. Puerto Rico 1988), for example, the court stated that the
purpose of the requirement that an employer establish the business necessity of a foreign language
requirement is to prevent an employer from "evading the congressionally mandated preference for U.S.
workers by tailoring the job requirements to the alien's qualifications." This language from Posadas
was quoted with approval in Hall v. McLaughlin, 864 F.2d 868, 875 n.8 (D.C. Cir. 1989).
6There is no evidence in the instant case
that Lucky Horse's workforce are not U.S. workers.